On February 26, 2009, former BART
Directors Sherman Lewis and Roy Nakadegawa, and the
Transportation Solutions Defense and Education Fund,
TRANSDEF, filed a taxpayers' suit against the Metropolitan
Transportation Commission (MTC) and other agencies and
their senior staff, asking the Alameda County Superior
Court to prevent the transfer of over $315 million to the
Warm Springs BART Extension project. Plaintiffs assert this
would be an illegal expenditure of public funds, because
these agencies violated the will of the voters when they
ignored funding restrictions in recent ballot measures. MTC
is the Bay Area’s transportation financing agency. The Warm
Springs extension would extend BART to a vacant industrial
area five miles south of the current Fremont station.

Alameda
County Measure B
Voters in Alameda County approved Measure B in 2000, the
levy of a half cent transportation sales tax. ACTIA, the
Alameda County Transportation Improvement Authority, is the
public agency responsible for the distribution of the sales
tax revenues according to the voter-approved expenditure
plan. One of the projects in the plan is the 5 mile long
BART Warm Springs extension within the city of Fremont. On
February 26, 2009, ACTIA approved funding for the
construction of the Warm Springs BART extension.

The Measure B plan provides, in part, “This project funds
the first phase of a BART rail extension that will
ultimately extend into Santa Clara County. Funds for
construction of the first segment of the BART rail
extension to Warm Springs in southern Fremont may not be
used until full funding for the rail connection to Santa
Clara County is assured.” ACTIA approved sending $224.4
million to the Warm Springs Extension.

However, funding for the BART extension to San Jose is far
from assured. Besides plummeting sales tax revenues, VTA’s
project budget presumes a $750 million grant from the
federal government, which VTA has not yet even applied for.
Plaintiffs are asking the Court to find that ACTIA violated
the terms of Measure B by approving construction funding
for the BART extension.

Regional
Measure 2
In 2004, voters in the Bay Area approved Regional Measure
2, which raised the toll on state-owned bridges in the Bay
Area by a dollar. MTC is authorized to spend RM2 funds on a
specific list of projects, including the Dumbarton Rail
Corridor and the Warm Springs BART Extension.
On January 28, 2009, MTC reassigned $91 million from the
Dumbarton Rail Corridor to the Warm Springs BART Extension.
MTC asserted that it was authorized to make that transfer,
because the the project was to be “implemented with other
funds not derived from tolls” (Regional Measure 2 language)
some time between 2019 and 2027. Plaintiffs argued that
this exceeded the Measure’s provision because the transfer
would delay the project for more than a decade and provide
less funding because of inflation.

Also, the substitute project would not be “within the same
bridge corridor.” The Dumbarton Rail Project is an east to
west crossing of the Bay and would connect with Caltrain,
Capitol Corridor Amtrak trains (Sacramento to San Jose),
Union City BART and the Altamont Commuter Express (Stockton
to San Jose). The Warm Springs Extension is a north to
south extension of BART that does not cross the Bay and has
no connection with any other rail project. In short, it
does nothing towards meeting one of the goals of the Plan,
which calls for “regional transit connectivity.”

Plaintiffs are asking the Court to find that MTC violated
the terms of Regional Measure 2 by approving a transfer of
funds to the BART extension.

Conclusion
In short, these government agencies ignored legal
restrictions established by the voters in their eagerness
to funnel $315+ million to the Warm Springs BART extension.

According to Sherman Lewis, a BART director who represented
part of Alameda County from 1993-1996, “These agencies take
voters’ money from one project and spend it on something
else. Stewardship is making sure the money stays where the
voters intended.”

Roy Nakadegawa, a BART director who represented another
part of Alameda County from 1992-2004, states “A BART
extension to Warm Springs can’t be built with Measure B
money unless there is money to connect it to Santa Clara
County. That money doesn’t exist—and shouldn’t. A BART
extension to San Jose would waste many billions of
dollars.”

David Schonbrunn, President of TRANSDEF stated, “We have
better and less expensive ideas for connecting the South
Bay to the East Bay. Politicians have been fixated on BART,
when they should be thinking High–Speed Rail.”